III. DOMESTIC VIOLENCE LEGAL STRUCTURE AND SYSTEM

III. DOMESTIC VIOLENCE LEGAL STRUCTURE AND SYSTEM

III. DOMESTIC VIOLENCE LEGAL STRUCTURE AND SYSTEM

The federal government has largely left the issue of domestic violence to the states due to federalism, Tenth Amendment concerns, and the fact that domestic violence as a criminal matter is traditionally handled by the states. ²⁵ As a result, domestic violence laws are inconsistently implemented across the country despite the fact that domestic violence occurs in

²⁰ See WORLD HEALTH ORGANIZATION, INTIMATE PARTNER VIOLENCE: UNDERSTANDING AND ADDRESSING VIOLENCE AGAINST WOMEN 1 (2012), https://apps.who.int/iris/bitstream/handle/10665/77432/WHO_RHR_12.36_eng.pdf [https://perma.cc/P5UQ-MYWD]; see also Olivia Moorer, Intimate Partner Violence vs. Domestic Violence, YWCA SPOKANE (Mar. 1, 2019), https://ywcaspokane.org/what-is-intimate-partner-domestic-violence/ [https://perma.cc/A6HFEKMT].

²¹ CDC, supra note 1.

²² Clare Fitzpatrick, Breaking Barriers to “Breaking the Cycle,” 13 SEATTLE J. SOC. JUST. 603, 604 n.9 (2014).

²³ Rebecca Hulse,* Privacy and Domestic Violence in Court*, 16 WM. & MARY J. WOMEN & L. 237, 239 n.5 (2010).

²⁴ SHARON G. SMITH ET AL., CENTERS FOR DISEASE CONTROL & PREVENTION, NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2015 DATA BRIEF – UPDATED RELEASE 7 (Nov. 2018), https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf [https://perma.cc/MDS6- GBBP].

²⁵ Melanie Kalmanson, Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims, 43 FLA. ST. U. L. REV. 1359, 1363 (2016).

every state.²⁶ While every state uses criminal and civil courts to administer relief to domestic violence survivorsfor intimate partner abuse, the options for available relief differ among states. For example, Louisiana does not provide protection orders against a same-sex partner. ²⁷ Additionally, protection orders in Idaho are only issued to abuse victims of spouses, exspouses or the parent of a shared child (no unmarried non-cohabitating partners). ²⁸

A. Federal Relief for Domestic Violence

One of the very few federal laws directly aimed at combating genderbased violence is the Violence Against Women Act (VAWA).²⁹ VAWA largely provides funding for criminal enforcement, victim advocacy services, and research on gender violence prevalence and prevention. ³⁰ Since its passage in 1994, VAWA has provided a dedicated federal office within the Department of Justice to implement and facilitate VAWA-funded programs and policies, ³¹ provided immigration visas for crime and trafficking victims, ³² and authorized tribal courts to enforce civil protection orders against non-tribal members living on native territory. ³³ While being groundbreaking for survivors of gender violence, VAWA has been criticized for directing the majority of its funding to the criminal prosecution of abusers instead of advocacy organizations that provide survivors with housing, counseling, and job training.³⁴

Despite its intention, VAWA provides very little direct relief to domestic violence survivors, particularly since the U.S. Supreme Court’s de

²⁶ John MacDonald, Top 10 States with the Most Domestic Abuse Cases, LAW OFFICE OF JOHN E. MACDONALD, INC. (Oct. 19, 2017), https://www.aggressivelegalservices.com/domestic-abuse-casesworst-states/ [https://perma.cc/23AH-8S2H].

²⁷ April Paredes et al., Domestic Violence, 19 GEO. J. GENDER & L. 265, 273-74 (2018).

²⁸ IDAHO CODE § 18-918 (2018).

²⁹ Paredes et al.,* supra* note 27, at 267.

³⁰ *Id. *

³¹Id. at 268.

³² Id. at 270.

³³ *Id. *at 275.

³⁴ LEIGH GOODMARK, A TROUBLED MARRIAGE: DOMESTIC VIOLENCE AND THE LEGAL SYSTEM 22 (2012). In 2019, the Services for Training Officers and Prosecutors (STOP) grant program, which was “designed to strengthen law enforcement response to violence against women,” received the largest amount of money appropriated under VAWA, at $215 million, followed by the Improving Criminal Justice Response grant program at $53 million. In comparison, the grant program for transitional housing received $36 million. See Id. at 19; NAT’L NETWORK TO END DOMESTIC VIOLENCE, VAWA AND RELATED PROGRAMS APPROPRIATIONS FOR FISCAL YEARS 18, 19, AND 20 1 (2019), https://nnedv.org/wp-content/uploads/2019/07/Library_Policy_NNEDV-FY20-Approps-Chart-.pdf [https://perma.cc/H5B8-EX7S].

cision in United States v. Morrison struck down its provision giving victims of gender violence a civil cause of action. ³⁵ In addition, reauthorization efforts for VAWA funding has stalled in the Senate since February 2019, diminishing expectations for extended federal relief for survivors of domestic violence.³⁶ Outside of VAWA, the federal government has been hands-off on domestic violence matters, as illustrated by Castle Rock v. Gonzales, where the U.S. Supreme Court held that a holder of a restraining order “cannot bring a due process claim against a government [including law enforcement] for its failure to actively enforce the order” and is not entitled to specific action by the government. ³⁷

B. State Relief for Domestic Violence

While state laws vary in their specific domestic violence policies, all fifty states provide legal relief to survivors through criminal or civil courts.³⁸ Different courts have their own laws on domestic violence. ³⁹ For example, the Seattle Municipal Court will hear domestic violence offenses classified as misdemeanors under the Seattle Municipal Code, while domestic violence felonies are processed by the King County Superior Court under the Revised Code of Washington. ⁴⁰ In Spokane, Washington, protection orders against non-cohabitating partners with no children are filed

³⁵ Paredes et al., supra note 27, at 269. In United States v. Morrison, a college student filed a civil suit against her university administration under VAWA for failing to punish her rapist. The U.S. Supreme Court held that the VAWA provision providing a federal civil remedy to victims of gender-based violence unconstitutionally violated the Commerce Clause, reasoning that violence against women had no substantive economic impact to justify federal interference. The holding essentially prohibits the federal government from providing a private right of action against gender violence perpetrated by private individuals. 529 U.S. 598 (2000).

³⁶ Jordain Carney, Senate Talks on Stalled Violence Against Women Act Reauthorization Unravel, HILL (Nov. 8, 2019, 1:55 PM), https://thehill.com/homenews/senate/469635-senate-talks-on-stalledviolence-against-women-act-reauthorization-unravel [https://perma.cc/29QR-6QVX].

³⁷Paredes et al., supra note 27, at 273-93. In Town of Castle Rock, Colo. v. Gonzales, the plaintiff sued her local police department for failing to enforce her restraining order against her estranged husband despite multiple pleas for help, which resulted in the death of her three children at the hands of her husband. 545 U.S. 748 (2005).

³⁸ Id. at 267.

³⁹ WASH. COURTS, A GUIDE TO WASHINGTON STATE COURTS 10 (12th ed. 2011), http://www.courts.wa.gov/newsinfo/content/pdf/CourtGuide2011.pdf [https://perma.cc/58GU9V5S]. Municipal courts in Washington differ from district courts in that they hear municipal or city ordinance violations that occurs within the boundaries of the municipality. With domestic violence, “municipal court can issue antiharassment protection orders upon adoption of a local court rule establishing that process.”

⁴⁰ Domestic Violence Victim Resources, SEATTLE MUNICIPAL COURT, https://www.seattle.gov/courts/programs-and-services/specialized-courts/domestic-violence-intervention-project/domestic-violence-victim-resources resources [https://perma.cc/B52B-BEQK].

in District Court (inferior court), whereas protection orders against cohabitating patterns with children are filed in Superior Court.⁴¹

Historically, domestic violence was processed solely in criminal court.⁴² Starting in the mid-1970s and through the 1980s, many states gave survivors the option of processing domestic violence protection orders in civil court⁴³ as an alternative for those who did not want to send their partners to jail and thus would often refuse to cooperate with prosecutors and law enforcement in criminal matters.⁴⁴ In both civil and criminal systems, legal relief is limited to arresting an abuser or enforcing physical distance. ⁴⁵

C. Domestic Violence Laws in Washington State

Washington State has an extensive and innovative set of domestic violence laws as compared to other states. The reach of Washington’s criminalization and protection orders is stricter and wider than that of most states. Washington’s domestic violence statute contains the following legislative declaration:

The purpose of this chapter is to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide … [I]t is the intent of the legislature that criminal laws be enforced without regard to whether the persons involved are or were married, cohabiting, or involved in a relationship.⁴⁶

Washington statute defines “domestic violence” as “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, sexual assault, or stalking” by an intimate partner, a family or a household member.⁴⁷ The statute’s thorough definition of “intimate partners” includes current and former spouses; current and former domestic partners; parent of a shared child regardless of marital or cohabitation history; current and former cohabitating partners in a dating

⁴¹ Police Department – Domestic Violence Unit, CITY OF SPOKANE, https://my.spokanecity.org/police/investigations/domestic-violence [https://perma.cc/L29Y-69UW].

⁴² M. Alexandra Verdi, Strengthening Protections for Survivors of Domestic Violence: The Case of Washington, D.C., 64 BUFF. L. REV. 907, 910 (2016).

⁴³ GOODMARK, supra note 34, at 17.

⁴⁴See Verdi, supra note 42, at 910; JEANNIE SUK, AT HOME IN THE LAW: HOW THE DOMESTIC VIOLENCE REVOLUTION IS TRANSFORMING PRIVACY 15 (2009).

⁴⁵ Verdi, supra note 42, at 910-11. The specific details of the protection order and criminal sentencing varies by state domestic violence and criminal laws. See also SUK, supra note 44, at 15 (“As an alternative to criminalization, the civil protection order was a prospective remedy designed to prevent future violence rather than to punish past conduct.”).

⁴⁶ WASH. REV. CODE § 10.99.010 (1979).

⁴⁷ Id. § 26.50.010(3).

relationship; and those in a non-cohabitating dating relationship at age sixteen years old or older for both partners. ⁴⁸ This definition is in contrast with other states that limit domestic violence relief to spouses, divorcees, parents sharing a child, and cohabitating partners. ⁴⁹

In addition to its broad reach, Washington domestic violence laws provide innovative solutions to protect survivors. For example, Washington is one of three states that charges cyberstalking as a felony if the victim has filed a protection order against the offender.⁵⁰ Furthermore, Washington is one of the few states that recognizes a common law tort action for “battered women syndrome.”⁵¹

Washington also has one of the strictest domestic violence-related firearm policies in the country. ⁵² The Lautenberg Amendment to the 1996 Federal Gun Control Act bans persons convicted of domestic violence as a misdemeanor or with a protection order against them from owning or possessing a firearm. ⁵³ Washington takes this initiative further by requiring law enforcement officers responding to domestic violence calls to seize firearms and ammunition that are in plain sight, discovered during a lawful search, or believed to be used or threatened to be used in relation to

⁴⁸ Id. § 26.50.010(7).

⁴⁹ Christina L. Myers, South Carolina Still Near Bottom in Violence Against Women, AP NEWS (Feb. 11, 2019), https://apnews.com/af9c4ee9c722496398f20d6e234d172e [https://perma.cc/WME3- FEFY]. Other states that limit domestic violence relief to spouses, ex-spouses, parents of a shared child, and cohabitating partners include Florida (FLA. STAT. § 741.28 (2003)), Georgia (GA. CODE ANN. § 19-13-10 (2015)), Kentucky (KY. REV. STAT. ANN. § 403.720 (West 2019)), and Wisconsin (WIS. STAT. § 968.075 (2016)).

⁵⁰ See Shimizu, supra note 10, at 120-23; 11 R.I. Gen. Laws § 11-52-4.2 (2008). The other two states with felony cyberstalking laws are Ohio and Rhode Island. While Ohio does not have comparatively strict domestic violence laws as Washington, the city of Akron has been acknowledged as a heavy public investor in its women’s shelters. See Andy Chow, Lawmakers Lament Lack of Action on Domestic Violence Bills, WKSU (Oct. 30, 2019), https://www.wksu.org/post/lawmakers-lament-lack-action-domestic-violence-bills#stream/0 [https://perma.cc/G393-MP79]; see also Megan Hadley, Justice for Domestic Violence Victims Depends on Where You Live, CRIME REPORT (Feb. 20, 2019), https://thecrimereport.org/2019/02/20/justice-for-domestic-violence-victims-depends-on-where-youlive [https://perma.cc/X37R-KK54].

⁵¹ See Paredes et al., supra note 27, at 294; see also M. Mercedes Fort, A New Tort: Domestic Violence Gets the Status It Deserves in Jewitt v. Jewitt, No. 93-2-01846-5 (Wash. Super. Ct. Spokane County April 21, 1993), 21 S. ILL. U. L.J. 355, 357 (1997) (“The court’s decision to recognize the tort of battered women’s syndrome/domestic violence… was a necessary and long overdue response to the woefully inadequate set of legal remedies so far provided by our courts. The Jewett court has allowed for the possibility that an individual injured by the effects of domestic violence can be fully compensated. The ruling in Jewett definitively sets forth the elements establishing the cause of action, and other courts may follow its lead.”).

⁵² Kate C. Prickett et al., Firearm Ownership in High-Conflict Families: Differences According to State Laws Restricting Firearms to Misdemeanor Crimes of Domestic Violence Offenders, 33 J. FAM. VIOL. 297, 300 (2018).

⁵³ Paredes et al.,* supra* note 27, at 276.

the call. ⁵⁴ Officers must also ask the abuser if they have access to other firearms and, with the their consent, must collect these firearms until the abuser’s court hearing. ⁵⁵ In King County, Washington’s largest county (which includes the city of Seattle), the Regional Domestic Violence Firearms Enforcement Unit was established to coordinate containment and enforcement of firearm removal orders.⁵⁶ In addition, Washington is the first state in the country to notify survivors when their abuser attempts to purchase a gun.⁵⁷

Washington has mandatory arrest laws under which law enforcement must make an arrest if they believe a domestic violence offense or a violation of a no-contact or protection order occurred based on probable cause. ⁵⁸ Furthermore, only the prosecutor can drop domestic violence charges against an abuser, even if the victim requests not to charge the abuser or refuses to testify.⁵⁹ Mandatory arrests have been criticized for failing to prevent abuse in the long run, and for taking away the victim’s autonomy and agency, including by having their partners arrested against their will and forcing the victim to participate in the criminal proceedings. ⁶⁰

1) Washington State Laws on Technology-Based Abuse

Washington is comparatively extensive in its treatment of technology-based abuse. First, cyberstalking is treated as either a misdemeanor or a felony, depending if the perpetrator had a prior protection order against them or has harassed the same victim before. ⁶¹ Additionally, computer trespass, ⁶² electronic data theft, ⁶³ and nonconsensual pornography distribution⁶⁴ are all treated as felonies.

⁵⁴ Melissa Santos, New WA Laws Aim To Get Guns Away from Domestic Abusers, CROSSCUT (Jul. 26, 2019), https://crosscut.com/2019/07/new-wa-laws-aim-get-guns-away-domestic-abusers [https://perma.cc/K4BS-LTMU] [hereinafter Santos, WA Gun Laws].

⁵⁵ Id.

⁵⁶ Regional Domestic Violence Firearms Enforcement Unit, PROSECUTING ATTORNEY’S OFFICE, KING COUNTY (Aug. 8, 2019), https://www.kingcounty.gov/depts/prosecutor/ellies-place/rdvfeu.aspx [https://perma.cc/HL5R-KGVX].

⁵⁷ Washington State Leads in Laws Addressing Intersection of Gun Violence and Domestic Violence, ALLIANCE FOR GUN RESPONSIBILITY (Oct. 3, 2019), https://gunresponsibility.org/press-releases/washington-state-leads-laws-addressing-intersection-gun-violence-domestic-violence [https://perma.cc/Z7F5-2PA8].

⁵⁸ What Happens in Cases of Domestic Violence, SEATTLE MUNICIPAL COURT, http://www.seattle.gov/courts/programs-and-services/specialized-courts/domestic-violence-court [https://perma.cc/HQ5Z-HKRT].

⁵⁹ *Id. *

⁶⁰ Paredes et al., supra note 27, at 287.

⁶¹ WASH. REV. CODE § 9.61.260 (2004).

⁶² Id. § 9A.90.040.

⁶³ Id. § 9A.90.100.

⁶⁴Id. § 9A.86.010. Nonconsensual distribution of intimate images is a gross misdemeanor for the first occurrence, then becomes a felony for the second and any subsequent offenses.

2) Washington State Domestic Violence Laws at the Courthouses

Outside statutory law, many courts that carry out Washington’s progressive domestic violence laws have equally progressive practices. Washington has several dedicated domestic violence courts. Vancouver, Washington is home to one of the earliest dedicated domestic violence courts where all protective order requests go through one judge and domestic violence advocates and abuser treatment providers participate in the court’s decision-making process on protection orders, treatment plans, and custody release.⁶⁵ The King County District Court located in Kent, Washington also has its own dedicated domestic violence court where domestic violence cases are consolidated and fast-tracked for processing. This domestic violence court additionally provides offender monitoring services as well as mental health, chemical dependency, and family intervention programs. ⁶⁶ It also houses a free childcare center for children of parents with court hearings. ⁶⁷ Seattle Municipal Court also has its own dedicated domestic violence court for misdemeanor offenses.⁶⁸ Other benefits of dedicated domestic violence courts include increasing efficiency in confidential communication between parties, decreasing delays for relief, and providing judges a more complete and nuance understanding of complex domestic violence cases to make fair decisions.⁶⁹

Another progressive measure that Washington courthouses are taking is establishing one-stop-shop, on-site domestic violence advocacy services. The King County Courthouse locations in Seattle, Kent, and Redmond house the Protection Order Advocacy Program (POAP) where staff will walk survivors through the protection order process; help fill out forms; provide referral services to local advocacy organizations, shelters, and social service providers; and provide general support before, during,

⁶⁵ Randal B. Fritzler & Leonore M.J. Simon, The Development of A Specialized Domestic Violence Court in Vancouver, Washington Utilizing Innovative Judicial Paradigms, 69 UMKC L. REV. 139, 161-63 (2000).

⁶⁶* Domestic Violence Court,* KING COUNTY DISTRICT COURT (Jan. 24, 2017), https://www.kingcounty.gov/courts/district-court/domestic-violence.aspx [https://perma.cc/C2FG-L3QV].

⁶⁷*Childcare Center, *KING COUNTY SUPERIOR COURT (May 30, 2019), https://www.kingcounty.gov/courts/superior-court/locations/mrjc/childcare.aspx [https://perma.cc/74Z6-4NYF].

⁶⁸ Specialized Courts, SEATTLE MUNICIPAL COURT, http://www.seattle.gov/courts/programs-and-services/specialized-courts [https://perma.cc/5EC6-FZ8N].

⁶⁹ Hulse, supra note 23, at 270-72; see also Fritzler & Simon, supra note 65, at 147-48; Tsai, supra note 15, at 1316.

and after protection order hearings including court accompaniment. ⁷⁰ Interpreter services are provided for POAP functions as well as for court hearings in general. ⁷¹

Other progressive domestic violence policies in Washington include an address confidentiality program that gives temporary addresses to domestic violence survivors to reroute their mail to the Secretary of State; ⁷² providing survivors leave from work for domestic violence-related events such as court hearings, medical treatment, counseling, or appointments with advocacy organizations; ⁷³ allowing domestic violence survivors to terminate rental agreements without further obligations; ⁷⁴ and forbidding landlords from discriminating against tenants based on their domestic violence survivor status. ⁷⁵

3) Shortcomings in Washington State’s Domestic Violence Laws

While Washington has many progressive domestic violence laws, the implementation of these laws is not perfect. The District of Columbia has progressive domestic violence laws to similar to the Washington’s that includes a courthouse domestic violence advocacy unit, firearms removal program, mandatory arrest, and probation program for abusers. ⁷⁶ However, survivors continued to report being victimized by judges and clerks, a lack of procedural flexibility, and unfair punishment decisions from judges and prosecutors. ⁷⁷ Judges in domestic violence courts reportedly do not take allegations of abuse or protection order requests seriously and may not portray abusive treatment as problematic.⁷⁸ Survivors also experience procedural problems such as spending a burdensome amount of

⁷⁰ KING COUNTY COAL. AGAINST DOMESTIC VIOLENCE, WHEN SURVIVORS ARE SERVED: AN FAQ FOR ADVOCATES WORKING WITH SURVIVORS WHO HAVE BEEN SERVED WITH A DOMESTIC VIOLENCE PROTECTION ORDER IN KING COUNTY 3-4 (2015), https://endgv.org/wp-content/uploads/2016/04/When-Survivors-Are-Served-FAQ-.pdf [https://perma.cc/3DZD-ADBQ]; see also Protection Orders, Prosecuting Attorney’s Office, KING COUNTY (Aug. 7, 2018), https://www.kingcounty.gov/depts/prosecutor/protection-orders.aspx [https://perma.cc/3QN3-ZDUB] [hereinafter Protection Orders].

⁷¹ Protection Orders, supra note 70.

⁷² WASH. REV. CODE § 40.24.010 (2019); About Us, ADDRESS CONFIDENTIALITY PROGRAM, WASHINGTON OFFICE OF THE SECRETARY OF STATE, https://www.sos.wa.gov/acp/about.aspx [https://perma.cc/6BTG-DDQX].

⁷³ WASH. REV. CODE § 49.76.030 (2008).

⁷⁴ Id. § 59.18.575.

⁷⁵ Id. § 59.18.580.

⁷⁶ Verdi, supra note 42, at 921.

⁷⁷ Id.

⁷⁸ Id. at 922-23. Verdi cites Murphy v. Okeke, where the presiding judge stated the petitioner was partly to blame for her abuse at the hands of her partner by “triggering the violence” and not immediately leaving. 951 A.2d 783, 786 (D.C. 2008).

time getting to and waiting in court for repetitive hearings; enduring embarrassment and pain from publicly telling their story; and having to face their abuser.⁷⁹

Abusers will often exploit the procedural burdens of court hearings against their partners by filing abusive litigation to drag their partners into court for frivolous matters.⁸⁰ These tactics employed by abusers include excessively scheduling and re-scheduling hearings on already resolved or irrelevant issues and requesting new a jurisdiction or judge.⁸¹ In Washington, judges can use their discretion to issue orders restricting the kinds of court filings an abuser can make.⁸² However, survivors have reported experiencing judicial officers not being able to recognize abusive litigation during their hearings. ⁸³ Survivors have also felt that the courts were reluctant to impose real consequences on abusers such as sanctions or award provisions and instead would only verbally admonish the abuser. ⁸⁴

Despite attempts to make victim-centered laws in domestic violence cases, the law is often unable to provide complete relief to survivors. This reality forces survivors to rely on community advocates to protect their safety.